Citation Nr: 1033108
Decision Date: 09/02/10 Archive Date: 09/13/10
DOCKET NO. 09-15 274A ) DATE
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On appeal from the
Department of Veterans Affairs (VA) Regional Office (RO) in
Manila, the Republic of the Philippines
THE ISSUES
1. Entitlement to service connection for the cause of the
Veteran's death.
2. Whether the appellant has legal entitlement to a one-time
payment from the Filipino Veterans Equity Compensation (FVEC)
fund.
WITNESSES AT HEARING ON APPEAL
Appellant, her daughter, and P. P.
ATTORNEY FOR THE BOARD
S. D. Regan, Counsel
INTRODUCTION
The Veteran had recognized guerilla service from May 1945 to
September 1945. The appellant seeks benefits as his surviving
spouse.
This matter comes before the Board of Veterans' Appeals (Board)
on appeal from October 2008 and September 2009 RO decisions. The
October 2008 RO rating decision denied service connection for the
cause of the Veteran's death. The September 2009 RO decision
determined that the appellant had no legal entitlement to a one-
time payment from the FVEC fund. In April 2010, the appellant
testified at a Travel Board hearing at the RO.
Please note this appeal has been advanced on the Board's docket
pursuant to 38 C.F.R. § 20.900(c) (2009). 38 U.S.C.A.
§ 7107(a)(2) (West 2002).
FINDINGS OF FACT
1. The Veteran died in May 2006. The death certificate lists
the immediate cause of death as cardiorespiratory arrest, with an
antecedent cause of death listed as diabetes mellitus. These
disorders began many years after service and were not caused by
any incident of service.
2. At the time of the Veteran's death, service connection was
not established for any disorders.
3. The Veteran died before February 17, 2009.
CONCLUSIONS OF LAW
1. A disability incurred in or aggravated by service did not
cause or contribute to the Veteran's death. 38 U.S.C.A. §§ 1310,
5107 (West 2002); 38 C.F.R. §§ 3.102, 3.312 (2009).
2. The requirements for eligibility to a one-time payment from
the FEVC fund are not met. 38 U.S.C.A. § 501(a) (West 2002 &
West Supp. 2009); American Recovery and Reinvestment Act § 1002,
Pub. L. No. 111-5 (enacted February 17, 2009); 38 C.F.R. § 3.203
(2009).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
Duty to Notify and Assist
Upon receipt of a complete or substantially complete application,
VA must notify the claimant and any representative of any
information, medical evidence, or lay evidence not previously
provided to VA that is necessary to substantiate the claim. This
notice requires VA to indicate which portion of that information
and evidence is to be provided by the claimant and which portion
VA will attempt to obtain on the claimant's behalf. See 38
U.S.C.A. §§ 5103, 5103A, 5107; 38 C.F.R. § 3.159. The notice
should inform the claimant about the information and evidence not
of record that is necessary to substantiate the claim. It should
also inform the claimant about the information and evidence that
VA will seek to provide, and the information and evidence the
claimant is expected to provide. See Pelegrini v. Principi, 18
Vet. App. 112, 120-21 (2004).
Certain additional notice requirements attach in the context of a
claim for Dependency Indemnity and Compensation (DIC) benefits
based on service connection for the cause of death. See Hupp v.
Nicholson, 21 Vet. App. 342 (2007). Generally, section 5103(a)
notice for a DIC case must include: (1) a statement of the
conditions, if any, for which a veteran was service-connected at
the time of his or her death; (2) an explanation of the evidence
and information required to substantiate a DIC claim based on a
previously service-connected condition; and (3) an explanation of
the evidence and information required to substantiate a DIC claim
based on a condition not yet service-connected. The content of
the section 5103(a) notice letter will depend upon the
information provided in the claimant's application.
With regard to the claim as to whether the appellant has legal
entitlement to a one-time payment from the FVEC fund, the Board
finds that because that claim is limited to statutory
interpretation, the notice provisions do not apply in this case.
Dela Cruz v. Principi, 15 Vet. App. 143 (2001); VAOPGCPREC 5-2004
(June 2004), 69 Fed. Reg. 59989 (2004) (VA is not required to
provide notice of the information and evidence necessary to
substantiate a claim where that claim cannot be substantiated
because there is no legal basis for the claim or because
undisputed facts render the claimant ineligible for the claimed
benefit).
As to the claim for service connection for the cause of the
Veteran's death, the RO sent correspondence in April 2008, a
rating decision in October 2008, and correspondence in February
2009. These documents discussed specific evidence, the
particular legal requirements applicable to the claim, the
evidence considered, the pertinent laws and regulations, and the
reasons for the decision. Additionally, the February 2009
correspondence (noted above) essentially notified the appellant
of the information required to comply with the requirements
indicated in Hupp, supra. VA made all efforts to notify and to
assist the appellant with regard to the evidence obtained, the
evidence needed, and the responsibilities of the parties in
obtaining the evidence. The Board finds that any defect with
regard to the timing or content of the notice to the appellant is
harmless because of the thorough and informative notices provided
throughout the adjudication and because the appellant had a
meaningful opportunity to participate effectively in the
processing of the claim with an adjudication of the claim by the
RO subsequent to receipt of the required notice. There has been
no prejudice to the appellant, and any defect in the timing or
content of the notices has not affected the fairness of the
adjudication. See Mayfield v. Nicholson, 19 Vet. App. 103
(2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006)
(specifically declining to address harmless error doctrine); see
also Dingess v. Nicholson, 19 Vet. App. 473 (2006). Thus, VA has
satisfied its duty to notify the appellant. The case was last
readjudicated in an April 2009 statement of the case.
In addition, all relevant, identified, and available evidence has
been obtained, and VA has notified the appellant of any evidence
that could not be obtained. The appellant has not referred to
any additional, unobtained, relevant evidence. The Board
observes that the Veteran's available service treatment records
do not show treatment for diabetes mellitus, or for any heart
disorders. Such records also do not show treatment for any lung
disorders. The Board notes that private physician statements of
record allege that the Veteran was treated for pulmonary
tuberculosis either during his recognized guerilla service, or
within the three year presumptive period following his separation
from service. The Board observes, however, that there is no
credible evidence that any possible pulmonary tuberculosis, if
incurred in service, caused or contributed to the Veteran's
death. The Board also notes that there is no treatment for
diabetes mellitus, a heart disorder, or for any lung disorders,
for many years after the Veteran's period of service. Therefore,
the Board finds that an opinion regarding the etiology of the
Veteran's cause of death need not be obtained in this case. See
McLendon v. Nicholson, 20 Vet. App. 79 (2006); see also 38
U.S.C.A. § 5103A(d)(2), 38 C.F.R. § 3.159(c)(4)(i). Thus, the
Board finds that VA has satisfied both the notice and duty to
assist provisions of the law.
Analysis
I. Cause of Death
To establish service connection for the cause of the veteran's
death, the evidence must show that a service-connected disability
was either the principal cause or a contributory cause of death.
For a service-connected disability to be the principal (primary)
cause of death, it must singly or with some other condition be
the immediate or underlying cause of death or be etiologically
related. For a service-connected disability to constitute a
contributory cause, it must contribute substantially or
materially; it is not sufficient to show that it casually shared
in producing death, but rather it must be shown that there was a
causal connection.
38 U.S.C.A. § 1310; 38 C.F.R. § 3.312.
Service connection may be granted for a disability resulting from
disease or injury incurred in or aggravated by service.
38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Service connection for
a "chronic disease," may be granted if manifest to a
compensable degree within one year of separation from service and
service incurrence will be presumed for tuberculosis if manifest
to a degree of 10 percent or more within three years after active
service. 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307,
3.309. Service connection may also be granted for any disease
diagnosed after discharge when all of the evidence establishes
that the disease was incurred in service. 38 C.F.R. § 3.303(d).
To prevail on the issue of service connection, there must be
medical evidence of a current disability; medical evidence, or in
certain circumstances, lay evidence of in-service occurrence or
aggravation of a disease or injury; and medical evidence of a
nexus between an in-service injury or disease and the current
disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999).
The chronicity provision of 38 U.S.C.A. § 3.303(b) is applicable
where the evidence, regardless of its date, shows that the
veteran had a chronic condition in service or during an
applicable presumption period and still has such condition. Such
evidence must be medical unless it relates to a condition as to
which, under the Court's case law, lay observation is competent.
Savage v. Gober, 10 Vet. App. 488, 498 (1997). In addition, if a
condition noted during service is not shown to be chronic, then
generally a showing of continuity of symptomatology after service
is required for service connection. 38 U.S.C.A. § 3.303(b).
When all the evidence is assembled, VA is responsible for
determining whether the evidence supports the claim or is in
relative equipoise, with the appellant prevailing in either
event, or whether a preponderance of the evidence is against a
claim, in which case, the claim is denied. Gilbert v. Derwinski,
1 Vet. App. 49 (1990).
Where service medical records are not available, the Board's
obligation to explain its findings and conclusions and to
consider the benefit-of-the-doubt rule is heightened. Pruitt v.
Derwinski, 2 Vet. App. 83 (1992); O'Hare v. Derwinski, 1 Vet.
App. 365 (1991).
The Veteran had recognized guerilla service from May 1945 to
September 1945. 38 U.S.C.A. § 107(a) authorizes the payment of
DIC benefits based upon service as a recognized guerilla.
The appellant essentially contends that the cardiorespiratory
diseases and diabetes mellitus that caused the Veteran's death
began during his period of recognized guerilla service. She
alleges that because of the unavailability of physicians and
hospitals during World War II, he was not able to receive
treatment for such disorders during service. She also reports
that due to poor weather conditions and a lack of food, the
Veteran suffered from illnesses during World War II, including a
cough and chest pain.
The Veteran's service treatment records are essentially not
available. A June 1945 treatment entry related a diagnosis of
malaria, old type.
A May 1943 statement from Dr. G. Ramirez indicated that the
Veteran was treated at his residential clinic in May 1943 with
diagnoses of cardiorespiratory arrest; diabetes mellitus; chronic
kidney disease; and pneumonia. (In an October 2008 decision, the
RO noted that Dr. G. Ramirez was only registered to practice
medicine in July 1949).
A September 1945 certificate of discharge from the Commonwealth
of the Philippines, Philippine Army, noted that the Veteran's
physical condition at discharge was good.
A January 1946 Extract of the Philippine Army, Form 23, noted
that the Veteran reported that he incurred no wounds or illnesses
during his recognized guerilla service.
A June 1946 statement from Dr D. F. F. Dimaguila indicated that
he treated the Veteran in June 1946 for symptoms of pulmonary
tuberculosis. Dr. Dimaguila indicated that, at that time, the
Veteran had complaints including easy fatigability; an occasional
dry cough sometimes with a great amount of expectoration; blood
streaked sputum; a rapid loss of weight and strength; chest and
back pain; an irregular fever with chilliness at times; insomnia
due to his cough; and rales in the lungs. Although the statement
was dated in June 1946, Dr. Dimaguila indicated that he treated
the Veteran for pulmonary tuberculosis through January 1949.
A November 1952 joint affidavit from two laypersons, who stated
that they served with the Veteran, indicated that he served with
their unit from May 1945 to September 1945. They indicated that
the Veteran presently suffered from breast pain, deafness in the
left ear, and low back pain, and that he suffered from such
disorders when he participated against enemy forces at Ipo Dam,
Hill Number 17, Bulacan. They stated that the Veteran sustained
a broken left elbow, deafness in his left ear, headaches, and
dislocation of left lumbar bones, with accompanying pain down to
his lower extremities, from enemy mortar shells. It was also
reported that the Veteran was treated at an Army field hospital
for incessant coughing and he was found to be suffering from a
lung ailment.
A January 1955 joint affidavit from two lay persons reported that
they knew the Veteran since their active duty in May 1945. They
stated that they witnessed the Veteran suffering from malaria
fever and a cough. They also reported that the Veteran suffered
injuries to his left elbow and his upper left back when a big
stone rolled and hit him from above his position.
A March 1955 statement from A. O. Ramirez, M.D., reported that he
treated the Veteran for the current complaints and symptoms of
chest and back pains; a chronic cough with expectoration; an
afternoon or nighttime fever; tinnitus; pain in the left leg
along the sciatic nerve; and fatigue with moderate dizziness.
Dr. Ramirez indicated that the Veteran reported that during his
service in the recognized guerillas, his unit was often out of
food, that it rained all the time, and that he was hit by a big
stone in the back upper left side. He stated that the Veteran
remarked that he suffered dislocated bones in his left elbow
joint. Dr Ramirez also noted that the Veteran indicated that
when he was a civilian, he was treated for chest and back pain
and a continued cough with more or less plenty of expectoration
with traces of blood. Dr. Ramirez indicated that the Veteran
underwent a chest X-ray in August 1952 and that he was found to
have a moderately advanced case of fibro-exudative pulmonary
tuberculosis. Dr. Ramirez stated that he treated the Veteran
irregularly from 1947 to 1949 for pulmonary tuberculosis and that
he underwent X-rays, as to his chest, in 1949 (by Dr. V. F.
Songco) and in 1952 (at the Dagupan Polyclinic and Hospital).
Dr. Ramirez related a diagnosis of pulmonary tuberculosis,
bilateral, active, fibro-exudative type.
A September 1956 report from a VA physician indicated that an
August 1949 chest film from Dr. V. F. Songco was not of
diagnostic quality. The VA physician reported that artifacts
were seen in the Veteran's right infraclavicular region. The
conclusion was an undetermined chest condition.
A February 1972 joint affidavit from two laypersons, who reported
that they had known the Veteran for thirty years, indicated that
after the Veteran's discharge from service, they found out he
suffered from tuberculosis.
A September 1972 statement from Dr. A. O. Ramirez was a duplicate
of his previous March 1955 statement, noted above.
VA treatment records dated from June 2004 to August 2005 show
that the Veteran was treated for multiple disorders. For
example, a June 2004 hospital report related discharge diagnoses
of severe hypoglycemia, dehydration, and acute renal failure (now
resolved). An undated problem list indicated that the Veteran's
five active problems were anemia, not otherwise specified; a
cerebrovascular accident; diabetes mellitus, type II, or
unspecified with neurological manifestations; and polyneuropathy
from diabetes.
The Veteran died in May 2006. The death certificate lists the
immediate cause of death as cardiorespiratory arrest, with an
antecedent cause of death listed as diabetes mellitus.
The Veteran was not service-connected for any disorders during
his lifetime.
A May 2008 medical certificate from the Heart of Jesus Hospital
indicated that the Veteran was treated from March 2, 2005, to
March 7, 2005, for hypertensive cardiovascular disease;
aortofemoral congestive heart failure; diabetes mellitus, type 2;
pneumonia; and cystolithiasis. Another May 2008 medical
certificate from the same facility reported that the Veteran was
treated from November 25, 2005, to November 26, 2005 for diabetes
mellitus, type 2, with nephropathy, and hypertensive
cardiovascular disease.
An additional May 2008 medical certificate from the Heart of
Jesus Hospital noted that the Veteran was treated from November
27, 2005, to December 2, 2005, for chronic kidney disease,
secondary to diabetes mellitus nephropathy; diabetes mellitus,
type 2; hypertensive arteriosclerotic cardiovascular disease;
lateral wall ischemia; congestive heart failure; chaotic arterial
tachycardia with parapneumonic effusion; and a transient ischemic
attack. A further May 2008 medical certificate from the same
facility reported that the Veteran was treated in that facility
from May 9, 2006 to May 17, 2006, for diabetes mellitus with foot
osteomyelitis; diabetes mellitus, type 2; diabetic mellitus
nephropathy; hypertensive arteriosclerotic cardiovascular
disease; coronary artery disease; left ventricular hypertrophy;
lateral wall ischemia; negative inspiratory force; and status
post a cerebrovascular accident with left hemiparesis.
An August 2008 medical certificate from the Heart of Jesus
Hospital reported that the Veteran was treated from May 21, 2005,
to May 24, 2005, for a cerebrovascular accident, infarct, right
middle cerebral artery; diabetes mellitus, type 2; diabetes
mellitus nephropathy with hyponatremia; dyslipidemia; and
diabetic polyneuropathy of the feet.
In evaluating the probative value of competent medical evidence,
the United States Court of Appeals for Veterans Claims
(hereinafter Court) has stated, in pertinent part:
The probative value of medical opinion
evidence is based on the medical expert's
personal examination of the patient, the
physician's knowledge and skill in
analyzing the data, and the medical
conclusion that the physician reaches. . .
. As is true with any piece of evidence,
the credibility and weight to be attached
to these opinions [are] within the province
of the adjudicators; . . .
Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993).
As stated by the Court, the determination of credibility is the
province of the Board. It is not error for the Board to favor
the opinion of one competent medical expert over that of another
when the Board gives an adequate statement of reasons or bases.
See Owens v. Brown, 7 Vet. App. 429, 433 (1995).
The Board observes that a May 1943 statement from Dr. G. Ramirez
indicated that the Veteran was treated at his residential clinic
in May 1943 with diagnoses of cardiorespiratory arrest; diabetes
mellitus; chronic kidney disease; and pneumonia. The Board notes
that in an October 2008 decision, the RO specifically noted that
Dr. G. Ramirez was only registered to practice medicine in July
1949. Therefore Dr. G Ramirez was apparently not a registered
physician in May 1943. Additionally, all the other evidence in
the claims file indicates that the Veteran did not suffer from
diabetes mellitus, chronic kidney disease, pneumonia; and
cardiorespiratory arrest for decades after his period of
recognized guerilla service. Further, the Board notes that the
Veteran's period of recognized guerilla service was from May 1945
to September 1945, and not during May 1943, which would mean the
listed disorders actually preexisted his period of service.
Therefore, the Board finds that the May 1943 statement from Dr.
Ramirez is not credible and has absolutely no probative value in
this matter. The Board further notes that any person who
knowingly makes or causes to be made, or conspires, combines,
aids, or assists in, agrees to, arranges for, or in any way
procures the making or presentation of a false or fraudulent
affidavit, declaration, certificate, statement, voucher, or
paper, concerning any claim for benefits under any of the laws
administered by the Secretary, shall forfeit all rights, claims,
and benefits under all laws administered by the Secretary (except
laws relating to insurance benefits). 38 U.S.C.A. § 6103(a).
The Board observes that there is no medical evidence of a heart
disorder or diabetes mellitus during the Veteran's period of
service. The probative medical evidence does not suggest that
any such disorders were related to any incident of service. The
Board also notes that the Veteran's available service treatment
records do not show treatment for any lung disorders, including
pulmonary tuberculosis. The Board observes, however, that a June
1946 statement from Dr. Dimaguila indicated that the Veteran was
treated for pulmonary tuberculosis in June 1946, within a year
after his separation from recognized guerilla service in
September 1945. Additionally, March 1955 and September 1972
statements from Dr. A. O. Ramirez reported that the Veteran was
treated from 1947 to 1949 for tuberculosis. The Board further
notes, conversely, that a September 1956 report from a VA
physician indicated that an August 1949 chest film from Dr. V. F.
Songco, cited by Dr. A. O. Ramirez, was not of diagnostic
quality. The VA physician reported that artifacts were seen in
the Veteran's right infraclavicular region. The conclusion was
an undetermined chest condition.
The Board notes, therefore, that the evidence is conflicting as
to whether the Veteran actually suffered from pulmonary
tuberculosis within the presumptive period following his
recognized guerilla service. The Board observes, however, that
there is no competent evidence that any possible pulmonary
tuberculosis, if incurred during service, caused or contributed
to the Veteran's death.
Furthermore, there is no competent evidence of record showing
that the disorders that resulted in the Veteran's death,
cardiorespiratory arrest and diabetes mellitus, were incurred in
or aggravated by service or were proximately due to or the result
of any disease or injury (to include any possible pulmonary
tuberculosis) incurred in or aggravated by service.
The Board has considered the appellant's contentions. As a
layperson, however, the appellant is not competent to give a
medical opinion on the diagnosis or etiology of a condition. See
Bostain v. West, 11 Vet. App. 124, 127 (1998), citing Espiritu v.
Derwinski, 2 Vet. App. 492 (1992). See also Routen v. Brown, 10
Vet. App. 183, 186 (1997) ("a layperson is generally not capable
of opining on matters requiring medical knowledge").
The weight of the credible evidence demonstrates that the
conditions involved in the Veteran's death occurred many years
after service and were not caused by any incident of service.
The fatal conditions were not incurred in or aggravated by
service, and they were not service-connected. A disability
incurred in or aggravated by service did not cause or contribute
to the Veteran's death, and thus there is no basis to award
service connection for the cause of the Veteran's death. The
preponderance of the evidence is against the claim for service
connection for the cause of the Veteran's death. Thus, the
benefit-of-the-doubt rule does not apply, and the claim must be
denied. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet.App.
49 (1990).
In making this determination, the Board does not wish to convey
any lack of sympathy for the appellant in this matter, nor for
the unfortunate circumstances which resulted in the Veteran's
death. Moreover, the Board does not doubt the sincerity of the
appellant's contentions. That being said, the Board is bound by
the laws and regulations governing the payment of benefits,
which, in this case, do not support the award of benefits.
II. FVEC fund
Under the recently enacted American Recovery and Reinvestment
Act, a new one-time benefit is provided for certain Philippine
veterans to be paid from the "Filipino Veterans Equity
Compensation Fund." American Recovery and Reinvestment Act §
1002, Pub. L. No. 111-5 (enacted February 17, 2009). Payments
for eligible persons will be either in the amount of $9,000 for
non-United States citizens, or $15,000 for United States
citizens.
For eligible persons who accept a payment from the Filipino
Veterans Equity Compensation Fund, such payment "shall
constitute a complete release of any claim against the United
States by reason of [such] service ...." However, nothing in
this act "prohibit[s] a person from receiving any benefit
(including health care, survivor, or burial benefits) which the
person would have been eligible to receive based on laws in
effect as of the day before the date of the enactment of this
Act."
Section 1002 addresses Payments to Eligible Persons Who Served in
the United States Armed Forces in the Far East during World War
II. Section 1002 (c)(1) provides that the Secretary may make a
payment from the compensation fund to an eligible person who,
during the one-year period beginning on the date of the enactment
of this Act, submits to the Secretary a claim for benefits under
this section. The application for the claim shall contain such
information and evidence as the Secretary may require. Section
1002 (c)(2) provides that if an eligible person who has filed a
claim for benefits under this section dies before payment is made
under this section, the payment under this section shall be made
instead to the surviving spouse, if any, of the eligible person.
Section 1002 (d) provides that an eligible person is any person
who--(1) served--(A) before July 1, 1946, in the organized
military forces of the Government of the Commonwealth of the
Philippines, while such forces were in the service of the Armed
Forces of the United States pursuant to the military order of the
President dated July 26, 1941, including among such military
forces organized guerrilla forces under commanders appointed,
designated, or subsequently recognized by the Commander in Chief,
Southwest Pacific Area, or other competent authority in the Army
of the United States; or (B) in the Philippine Scouts under
section 14 of the Armed Forces Voluntary Recruitment Act of 1945
(59 Stat. 538); and (2) was discharged or released from service
described in paragraph (1) under conditions other than
dishonorable.
In cases for VA benefits where the requisite veteran status is at
issue, the relevant question is whether qualifying service is
shown under Title 38 of the United States Code and the
regulations promulgated pursuant thereto. See Soria v. Brown,
118 F.3d 747, 749 (Fed. Cir. 1997). Where service department
certification is required, see 38 C.F.R. § 3.203(c), the service
department's decision on such matters is conclusive and binding
on the VA. Duro v. Derwinski, 2 Vet. App. 530, 532 (1992).
Thus, if the United States service department refuses to verify
the claimed service, the applicant's only recourse lies within
the relevant service department, not with VA. Soria, 118 F. 3d
at 749. In short, under 38 C.F.R. § 3.203, a claimant is not
eligible for VA benefits based on Philippine service unless a
United States service department documents or certifies their
service. Soria, 118 F. 3d at 749.
The appellant claims that as her deceased husband had recognized
guerilla service, she is entitled to a one-time payment from the
FVEC fund.
The Veteran died in May 2006. The death certificate lists the
immediate cause of death as cardiorespiratory arrest, with an
antecedent cause of death listed as diabetes mellitus.
In March 2009, the appellant filed her claim for legal
entitlement to a one-time payment from the FVEC fund. The Board
observes that the appellant does not legally qualify for a one-
time payment from the FVEC fund. The American Recovery and
Reinvestment Act § 1002, Pub. L. No. 111-5, was enacted on
February 17, 2009. Section 1002 (c)(1) provides that the
Secretary may make a payment from the compensation fund to an
eligible person who, during the one-year period beginning on
the date of the enactment of this Act, submits to the
Secretary a claim for benefits under this section. Section 1002
(c)(2) provides that if an eligible person who has filed a claim
for benefits under this section dies before payment is made under
this section, the payment under this section shall be made
instead to the surviving spouse, if any, of the eligible person.
In this case, the Veteran died in May 2006, more than two and a
half years prior to the February 17, 2009 date of enactment of
the American Recovery and Reinvestment Act.
This is a case where the law is dispositive. Sabonis v. Brown, 6
Vet. App. 426 (1994). The appellant does not meet the basic
eligibility requirements for a one-time payment from the FVEC
fund. Therefore, the claim must be denied based upon a lack of
entitlement under the law.
ORDER
Service connection for the cause of the Veteran's death is
denied.
The appellant is not eligible for a one-time payment from the
Filipino Veterans Equity Compensation Fund.
____________________________________________
DENNIS F. CHIAPPETTA
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs